INTRODUCTION
Tendering of legal documents is
an important stage in judicial proceedings. A document may be in possession of
a party, but it does not automatically become evidence merely because it is
filed with the plaint, written statement, petition, reply or affidavit. For a
document to be considered by the court, it must be properly tendered, proved
and exhibited in accordance with law. The process of tendering documents
ensures that only reliable, relevant and legally admissible material forms part
of the judicial record.
MEANING
OF TENDERING OF DOCUMENTS
Tendering of documents means the
formal act of producing a document before the court during evidence, with a
request that it be taken on record and marked as an exhibit. It is usually done
through a witness who identifies the document, proves its execution, source,
custody or contents, and connects it with the facts in issue.
For example, a sale deed,
agreement, receipt, notice, postal record, medical report, bank statement,
photograph, CCTV footage, WhatsApp chat, email or certificate must be tendered
through proper evidence before the court can rely upon it.
DIFFERENCE
BETWEEN FILING AND TENDERING
There is a clear distinction
between filing a document and tendering a document.
Thus, a document may be on the
court file but still have no evidentiary value unless it is duly proved
according to law.
RELEVANCE
AND ADMISSIBILITY
Before a document is tendered,
the court considers two basic questions:
1.
Whether the document is
relevant to the dispute.
2.
Whether the document is
legally admissible.
A document may be relevant but
still inadmissible if it is unstamped, insufficiently stamped, unregistered
where registration is compulsory, privileged, forged, or not proved in the
manner required by law.
In India, the rules relating to
proof of documents are now governed by the Bharatiya Sakshya Adhiniyam, 2023,
which has replaced the Indian Evidence Act, 1872. The official Act recognises
proof of electronic records and provides that contents of electronic records
may be proved in accordance with Section 63.
PRIMARY
AND SECONDARY EVIDENCE
Ordinarily, a document should be
proved by producing the original document, which is known as primary
evidence. Where the original is unavailable for legally acceptable reasons, a
party may seek to prove the document by secondary evidence, such as a
certified copy, photocopy, counterpart, duplicate or oral account of the
contents, subject to fulfilment of legal conditions.
The party relying on secondary
evidence should explain why the original document cannot be produced. Courts
generally require a proper foundation before allowing secondary evidence.
PROCEDURE
FOR TENDERING DOCUMENTS
The usual procedure for tendering
legal documents is as follows:
1.
The party files a list of documents.
2.
The witness enters the witness box.
3.
The document is shown to the witness.
4.
The witness identifies the document.
5.
The witness explains its execution, source, custody
or relevance.
6.
The opposite party is given an opportunity to
object.
7.
The court decides whether the document should be
marked.
8.
If accepted, the document is marked as an exhibit.
In civil cases, documents are
generally exhibited as Ex. PW-1/1, Ex. PW-1/2, etc., for the plaintiff’s
witnesses and Ex. DW-1/1, Ex. DW-1/2, etc., for the defendant’s
witnesses. In criminal cases, documents may be exhibited through prosecution or
defence witnesses, such as Ex. P-1, Ex. PW-1/A, or similar
markings depending on court practice.
OBJECTIONS
AT THE TIME OF TENDERING
The opposite party has a right to raise objections when a document is tendered. Common objections include:
1.
Document is irrelevant.
2.
Document is forged or fabricated.
3.
Original has not been produced.
4.
Photocopy is inadmissible.
5.
Document is insufficiently stamped.
6.
Document requires registration.
7.
Author or signatory has not been examined.
8.
Electronic record is not supported by the required
certificate.
9.
Document is hearsay or not proved by a competent
witness.
Objections should normally be
raised at the time when the document is tendered. If a party remains silent,
certain objections relating to mode of proof may be treated as waived, although
objections relating to inherent admissibility may still be considered by the
court.
TENDERING
OF ELECTRONIC RECORDS
In modern litigation, electronic
documents are frequently tendered before courts. These include emails, WhatsApp
chats, call detail records, CCTV footage, screenshots, audio-video recordings,
computer printouts, digital photographs, server logs and online records.
Under Section 63 of the Bharatiya
Sakshya Adhiniyam, electronic records may be admissible when the prescribed
conditions are satisfied. The provision requires a certificate identifying the
electronic record, describing how it was produced, giving particulars of the
device involved, and addressing the conditions relating to regular use and
proper operation of the computer or communication device.
Therefore, while tendering
electronic evidence, the party should normally produce:
1.
the electronic record,
2.
printout or copy, where applicable,
3.
certificate under Section 63,
4.
details of device/source,
5.
witness who can identify and support the record.
MARKING
FOR IDENTIFICATION AND MARKING AS EXHIBIT
Sometimes, the court may not
immediately exhibit a document due to objection or incomplete proof. In such
cases, the document may be marked for identification, such as Mark A or Mark
X. This does not mean that the document has been proved. It only shows that
the document was produced before the court.
A document marked for
identification has weaker evidentiary value than a duly exhibited document. The
party must still prove it properly before relying upon it.
IMPORTANCE
OF TENDERING DOCUMENTS PROPERLY
Proper tendering of documents is
important because it affects the final outcome of the case. Even a strong
document may become useless if it is not proved correctly. Courts decide cases
on legally admissible evidence, not merely on allegations or papers placed on
the file.
A properly tendered document
helps in:
1.
proving the facts in issue,
2.
corroborating oral testimony,
3.
disproving the opponent’s case,
4.
establishing legal rights,
5.
supporting damages or compensation,
6.
proving service of notices,
7.
proving transactions, payments, possession or
ownership.
PRECAUTIONS
WHILE TENDERING DOCUMENTS
A lawyer or litigant should keep
the following precautions in mind:
1.
Always keep originals ready.
2.
File complete and legible copies.
3.
Check stamp duty and registration requirements.
4.
Prepare proper affidavit of evidence.
5.
Ensure that the correct witness proves the
document.
6.
For electronic records, prepare the required
certificate.
7.
Raise objections at the correct stage.
8.
Do not rely only on photocopies without legal
foundation.
9.
Make sure exhibit numbers are correctly recorded.
10. Link each
document with the pleadings and issues.
CONCLUSION
Tendering of legal documents is
not a mere formality. It is a vital part of the law of evidence. A document
becomes useful in litigation only when it is relevant, admissible and duly
proved. Proper tendering gives authenticity and evidentiary value to documents,
while defective tendering may result in exclusion or limited reliance.
Therefore, every advocate and litigant must carefully follow the procedure for
producing, proving and exhibiting documents before the court.